Citation Nr: 1825576
Decision Date: 04/27/18 Archive Date: 05/07/18
DOCKET NO. 14-37 469 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to service connection for tinnitus.
ATTORNEY FOR THE BOARD
Suzie Gaston, Counsel
INTRODUCTION
The Veteran served on active duty from February 1966 to February 1968.
This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2013 rating decision, by the St. Louis, Missouri, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for tinnitus. Subsequently, in a November 2013 rating decision, the RO confirmed the denial of the claim for service connection for tinnitus. The Veteran perfected a timely appeal to that decision.
FINDING OF FACT
The Veteran's tinnitus did not have onset in active service, did not manifest within one year of separation from active service, and is not otherwise related to active service.
CONCLUSION OF LAW
The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran maintains that he developed tinnitus as a result of exposure to loud noise while serving as a paratrooper in the Army. The Veteran indicates that he occasionally had to wait long periods of time on the tarmac with running aircraft engines all around and an hour or more inside the plane on route to the jump sites; as a result, he eventually developed ringing in his ears. The Veteran indicates that he never sought treatment because other experienced jumpers assured him that the ringing in his ears would eventually go away; however, it has never left him in the 45 years since service.
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Certain chronic diseases, including organic diseases of the nervous system (such as tinnitus), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).
After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim of service connection for tinnitus. Significantly, the Veteran's DD Form 214 reflects that he was awarded the Parachute Badge and he had airborne training; therefore, noise exposure in service is conceded. However, the service treatment reports (STRs) do not reflect any complaints of or reference to tinnitus. Moreover, post service treatment reports show no complaints or references to tinnitus until July 2011, more than 4 decades after service separation. During a clinical visit with his private physician in July 2011, the Veteran reported that he had had tinnitus for some time now and it seemed to be unchanged. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000).
In addition, while the Veteran has a current diagnosis of tinnitus, there is no competent evidence indicating that there is a relationship between the Veteran's tinnitus and active service. The only medical opinion regarding a nexus to military service is the negative opinion provided by the VA/DBQ examiner. The Veteran has not submitted any credible and competent evidence of a nexus to service.
Significantly, following a VA audiological examination in December 2012, the examiner reported a diagnosis of tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner noted that the Veteran claims onset of tinnitus as during his military duty; however, there is no evidence of any complaint of tinnitus, nor is there evidence of any noise exposure loud enough to damage his hearing, as he left service with normal hearing and no change from entrance test. The examiner stated that, given that there is no evidence of acoustic trauma significant enough to change hearing thresholds, no evidence of any claim of tinnitus during his service time, it was his opinion that it is less likely than not that the Veteran's tinnitus is due to an event in his military duty. The Board finds the opinion of the VA physician to be adequate and to be evidence against the claim. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. It was accompanied by a clear rationale. Moreover, no other competent evidence of record refutes that opinion.
The Board acknowledges the Veteran's contentions that he has tinnitus that is due to noise exposure in service. However, the question of an actual association between his tinnitus, diagnosed many years after his separation from service, and his military noise exposure is a medical question too complex for lay person to competently address. The Board finds the opinion of the VA audiological examiner to be more probative than the Veteran's lay opinion. The audiologist's opinion is also consistent with the record, which, as noted above, reflects that the Veteran's tinnitus was not noticed until years after service in 2011.
The Board has weighed the Veteran's report that he has had ringing of the ears since his time on and around aircraft during service but finds this report outweighed by other evidence. Notably, he did not report it contemporaneous to this service either in seeking treatment or in his report of medical history in December 1967. He did report other conditions. Additionally, although the report in 2011 states that the Veteran reported having tinnitus for some time, that 2011 report is the earliest report. If the Veteran had ringing in the ears present during and ever since service, it is reasonable to find that he would have reported it either at exit from service or that there would be a report of it prior to 2011. For these reasons, the Board affords very little weight to his reports of continuity of symptoms and finds the negative evidence in this case more probative.
In summary, the preponderance of evidence is against a finding that the nexus element hs been met in this case. Hence, the appeal must be denied. There is no reasonable doubt to be resolved. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
ORDER
Service connection for tinnitus is denied.
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JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs